The question we must answer to dispose of this controversy is simple, id est, did the chancellor abuse his discretion in refusing to set aside a final decree based on a decree proconfesso entered by the clerk while a petition for counsel fees was pending?
On the return, day given in the order of publication, defendant below filed her appearance and also a petition asking for an allowance of counsel fees. She further prayed for temporary alimony and expenses whenever she should file her answer. Six days before the defendant was required to answer, complainant amended the bill of complaint and mailed a copy to defendant's solicitor. A decree pro confesso was entered July 5th and on July 13th the matter was referred to a master for the purpose of taking testimony and reporting the same to the court with his findings. Two weeks later a final decree was entered by the court, and on August 14th the court denied the motion of the defendant to set aside the decree pro confesso and the final decree.
The defendant, who became the appellant here, has assigned as error the action of the clerk in entering the decree proconfesso, and the various orders of the court referring the matter to the master, allowing the cause to proceed ex parte and the taking of depositions, denying the motion to set aside the final decree and the decree pro confesso, and the final decree granting a divorce to the complainant.
It is urged by the appellant that the clerk of the court was wholly without authority in entering the decree pro confesso on the rule day in July when there was on record in the cause a petition for counsel fees and a motion to strike it, upon which no ruling had been made by the chancellor. *Page 113
Reference is made to Section 36 of the 1931 Chancery Act, Chapter 14658, Laws of 1931, when it is provided that when a bill is amended after answer or motion filed, the defendant shall plead to the amended bill within ten days or within such time as the court may fix, otherwise the original answer or motion shall be considered as pleaded to the amended bill.
I think this position is wholly erroneous. Obviously this was not the intent of the Legislature, and the true meaning of the above cited section can be learned only from studying it in its entirety together with the other related sections in the Act.
In this section it is further provided that the time for pleading by the defendant shall not be enlarged where the amended bill is filed prior to answer or motion, except upon order of the court. By this section it is sought to expedite the pleading in chancery matters and allow the amendment of bills of complaint without the necessity of a new answer unless the defendant shall present it within ten days after he receives a copy of the amended bill. This interpretation is further strengthened by Section 24 of the same Act, which prohibits the stay of the cause even by a motion to strike a part of the pleadings or for better particulars, unless so ordered by the court.
The motion described in Section 36 is one directed to the bill of complaint, and in this category could not be included an application, as was made in this case, for counsel fees, as the same did not in any wise pertain to the merits of the controversy or the sufficiency of the bill.
The record does not show that any effort was made on the part of the appellant to secure a stay from the court, to file an answer or a motion to dismiss or to call up for disposition the petition which was lodged with the clerk four weeks before the decree pro confesso. *Page 114
My opinion is that the clerk had full authority to enter the order that the matter proposed ex parte, and this action on his part was confirmed by the chancellor when he appointed the special master.
It has been repeatedly held by this court that the setting aside of a decree pro confesso rests within the sound discretion of the chancellor, and the same will not be set aside unless an abuse of that discretion is shown. See Gossett v. Ullendorff,114 Fla. 159, 154 South. Rep. 177; Weathersbee v. Dekle, 102 Fla. 1057,136 South. Rep. 708; Bongiovanni v. Spoto, 111 Fla. 144,149 South. Rep. 10.
For these reasons, I am unable to concur in the opinion of a majority of the Court.
TERRELL, C.J., concurs.